Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Monday, November 25, 2013

Tomorrow (Tuesday) the Supreme Court will decide whether to hear one or more of four petitions for certiorari asking the Court to rule on whether corporations have a right to deny insurance coverage for their employees, for preventive health care measures, to which the corporations have objections based on religion. These objections and the claimed right to religious freedom, are said to belong to the corporations themselves, or only to their proprietors. Most of the claims arise under a federal statute, the Religious Freedom Restoration Act, which narrows the scope of Court-established doctrine that religious institutions are obliged to obey neutral laws of general applicability. The statute applies to "persons," and the Tenth Circuit Court of Appeals, in the Hobby Lobby Stores case, found in favor of the claim. If corporations have First Amendment rights to political speech, it was difficult for the court to see why they might not have other First Amendment rights. Indeed. One of the petitions renews broad Commerce Clause challenges to the misnamsed Affordable Care Act that have already been rejected, and it seems unlikely that the Court would hear them again, but it seems all but certain that the Court will hear one or more of the religious-freedom claims, as the Circuit Courts are divided and these are certainly important disputes to resolve.

What would Holmes say? Well, Citizens United is now the law, so there is no going back on that path. But he would likely consult the common law, the ultimate source of corporate personhood in our constitutional law. In his opinions for the Massachusetts Supreme Judicial Court and in his scholarly writings he held that newspapers (and presumably other news organizations not then imagined) had a qualified privilege to publish statements that might injure a person's reputation, because of the overall benefit to society of a free exchange of information and ideas. The Supreme Court has followed the rough outlines of Holmes's reasoning in defamation cases, and it seems a reasonable way of distinguishing First Amendment rights. There is a benefit to society from allowing enterprises as well as individuals to express themselves--freedom of the press belongs to the enterprise that owns own--but it is difficult to see why business enterprises should be freed from the obligation to obey laws of general applicability. Aside from the absurdity of corporations becoming Christian Scientists and refusing to provide health insurance at all, there is the blunt fact that corporations do not have consciences or freedom of conscience, and cannot generally follow religious practices, any more than they can vote. When you form a corporation you do so partly because it shields you from liability for the corporation's acts, and in exchange you accept the reality that the corporation must be guided by business practices to which religious objections might be raised, such as borrowing and lending money at interest.

These petitions bring to mind another point that might help to bring clarity to the larger contest over Obamacare. The Affordable Care Act is primarily a regulation of the national insurance market, and not of health care. Like earlier legislation governing doctors and hospitals, it affects health care only indirectly by setting conditions for reimbursement. As Governor Romney reminded us during the last campaign, everyone in the United States has a form of health insurance, because Congress in its wisdom, exercising the taxing and spending power, provides that hospitals receiving federal funds must keep their emergency rooms open to everyone. The Affordable Care Act reforms that insurance system, and requires everyone to pay a suitable premium for the insurance they receive. Holmes was one of the early proponents of social insurance, which allows the community as a whole to bear the burden of unforeseen expenses when an individual is injured. Does anyone really have a problem with that?

Friday, November 22, 2013

A colloquy on reddit yesterday got me thinking about the deep differences in world view among the Supreme Court justices, past and present. Holmes worked out a personal philosophy that he called "mystical materialism," which he compared to Spinoza's, minus the deductive proofs. As far as I can tell it was an atomistic materialism, but one in which he accepted the reality of things like consciousness that were not yet explained by materialist science . He championed Kant against Hegel in the intellectual debates of his day, and so one might say he was a materialist who accepted that many of the features of the world are features of our perceptive apparatus that we cannot escape. He was always trying to hear the "clang behind phenomena" that he felt certain was there.

Am I too far into the weeds? What I am working toward is the lifelong quarrel he conducted with German idealist philosophy. Who now would bother making fun of Hegel? He doubted the objective existence of human rights, or indeed any moral principles--the "natural law" to which many people still refer. He was particularly rude about suggestions that natural law should trump positive law--the enactments of legislatures and the decisions of judges.His materialism, which he shared with his closest intellectual friends, contributed to his rejecting constitutional textualism or originalism. The Founders undoubtedly accepted the reality of natural rights and other moral principles (although it is not clear how much these are embedded in the Constitution), but Holmes cheerfully denied that the text of the Constitution could trump the more pragmatic decisions of the Supreme Court.

This larger quarrel would come up in cases where natural rights to property, or the objective existence of a business enterprise, were at issue, and in those cases Holmes' materialism seemed appropriate. He insisted that property rights were just a summary designation for past decisions of courts concerning legal conventions, and so could be abolished or altered at will by state legislatures. He thought natural resources were not inherently subject to property rights or articles of commerce, and so could be protected from commercial exploitation. And so forth. Which brings us to the subject of yesterday's conversation: how would Holmes respond to the Citizens' United case? The curious doctrine that business corporations had due process rights to their property, and even to their expected earnings, which they could assert in federal court, as we know first appeared in the Santa Anna Railroad Case not long after the Fourteenth Amendment was adopted. I don't recall an instance in which the personhood of corporations came before Holmes' Court, but it sounds like the sort of thing he rejected. The present justices have got to the point, however, where business corporations are allowed standing in federal court, and will be heard this term to assert their supposed right to religious freedom. The case is Sibelius v. Hobby Lobby Stores, Inc. and the TEnth Circuit has already held that if corporations have freedom of speech protected by the First Amendment, why not freedom of religion? The case arises under a statute, it is true, but why imagine that Congress would commit such a folly? We undoubtedly will hear learned arguments that a corporation was a distinct person with rights at common law, and the statute must be construed accordingly. Citizens United is a mere bagatelle compared to these new assertions. Respect for precedent notwithstanding, I think Holmes would be. . . well, bemused.

Wednesday, November 20, 2013

There has been so much talk about the Constitution that I have had trouble selecting one subject, but there was a recent flurry of posts that calls out for comment. Supreme Court Justice Stephen Breyer gave a graceful interview to La Revue des deux Mondes, an honored journal that was in days of yore closely followed here in New England. Justice Breyer spoke about Proust and other authors who meant a great deal to him, and in answer to a question, quoted Justice Holmes,who also in his day read and admired French literature. Breyer's interview was published (in English) in The New York Review of Books, which is more or less the American equivalent of the French journal. This prompted an extraordinary outpouring of bile from a right-wing newspaper, the New York Post,

In Rupert Murdock's Post, columnist Kyle Smith condemned Breyer for quoting Holmes. Breyer had repeated an anecdote about Holmes mildly chiding his brethren for holding that Broadway theaters was not sufficiently suffused with the public interest to justify government support or regulation. Kyle Smith then worked up a head of steam condemning Breyer, not only for quoting Holmes, but for giving an interview in French, for reading Proust, and for speaking of his own method of interpreting legal texts, which differs from Justice Scalia's. Smith garbles and misunderstands the interview, but the point is evidently to express hatred for these honored, cosmopolitan men, who have the temerity to be citizens of the United States.

Tuesday, November 12, 2013

Originalists have been conducting an interesting discussion, largely among themselves, concerning the conflict between their new theories of textual interpretation and an older common-law tradition--with which Holmes of course was identified, although his name doesn't come up often these days. The conflict is straight-forward: Holmes and many judges of his generation believed the Supreme Court was established by the Constitution as a common-law court, and accordingly gave great deference to its own precedents, a doctrine we like to label with the Latin tag stare decisis. Justice John Paul Stevens was a strong defender of precedent, as a recent article by Roger Citron reminds us. Citron calls Stevens "the last common law justice," and Lawrence Solum has blogged a link to his article on his own originalist Legal Theory Blog. Professor Solum seems to be pursuing ideas in an article by Kurt Lash that he has also blogged.

Lash reminds us that the Supreme Court occasionally overrules its own precedents, but the opinions in recent cases don't give a clear explanation of when and why precedents should govern and when they should be overruled. His complaint is that opinions overruling precedent don't state any clear theory, and he comes to the aid of the justices by saying that they have silently adopted something called the theory of a "Living Constitution."

There are a great many assumptions buried in his premises. Lash and apparently Solum assume that precedents are overruled when they are found to be in error, while of course that is rarely given as the reason; most frequent perhaps is the claim that the precedent does not apply to the modern conditions in which disputes resembling those of the past arise. The theory that Lash calls "Living Constitutionalism" is simply that changing conditions may require a different understanding of the way the Constitution's principles play out. This is not a doctrine that calls for changing or reinterpreting the values enshrined in the text of the Constitution, it is only a way of understanding that text, one that differs from Lash's.

There are other problems with Lash's article, which certainly has the virtue of the transparency he recommends, and rightly says that the Court's opinions often lack. What I want to point out here is only that Justice Stevens is also celebrated as the last liberal originalist,and Justice Ginzburg reasonably claims that he was not the last, and that she too is an originalist. The question is not whether the text of the Constitution should govern the decisions of courts, but how that text is to be understood. We would all be pleased if the justices would speak more plainly about the way they understand the Constitution--what sort of document it was and is.

The Washington Postvia Immigration Proftells us that the State Department has been refusing visa requests from most of the Afghani interpreters who have been risking their lives to support our troops, although the interpreters were promised safe conduct to the United States. The interpreters say convincingly that their lives and the lives of their families are increasingly in danger as US troops withdraw, but their requests for visas have been turned down supposedly because they do not have a reasonable fear of retaliation. The true reason seems to be that the interpreters are still needed, and are being forced to serve another hitch of unknown length, until they are no longer wanted. Words fail me.

Thursday, November 7, 2013

oThe dispiriting arguments in Bond v. United States the other day remind us that the Right has mastered the consciously liberal rights-talk, and the legal process jurisprudence, that came to dominate Constitutional law in the 1950s and 1960s, and which continues to dominate the law schools. The rights of white people to be free from race discrimination, and the rights of corporations to free speech and religious belief, dominate the Supreme Court. There is a revival of old states-rights arguments, reviving eighteenth-century sensibilities with seemingly neutral principles of federalism. The result is a steady erosion of the Second Reconstruction, the Civil Rights era when the Supreme Court began at last to give some force to the commands of the Reconstruction Amendments. As we have seen in recent cases like Bond, and the attack on the Affordable Care Act, neither the Solicitor General nor the liberal minority on the Supreme Court have a standpoint from which to resist this new majoritarian rights talk.

Teachers of constitutional law in my generation are almost without exception white men from similar backgrounds, educated at two or three of the leading law schools (most often Harvard). The casebooks from which we were taught, from which we now teach, reflect a necessarily narrow perspective. The new thinking is being nurtured among young scholars, happily a more diverse group in every way who have grown up with a firmer understanding of the politics of identity and the factual reality of legally constructed identities based on race, gender, and sexual orientation. The youngsters are exploring the facts of history, rejecting the mythologies in which were educated. Professor Juan Perea reminds us that constitutional law casebooks until recently often did not even mention slavery, one of the structural features of the Constitution, or mentioned it only in passing as an eccentricity abolished by the Thirteenth Amendment. Professor Zephyr Teachout restores to us the "anti-corruption principle" that informs the Constitution, a product of the natural law thinking of the eighteenth century and central to the celebrated original meaning. The anti-corruption principle appears to be the liberal obverse of the "civic virtue" celebrated by the Right, more firmly grounded in historical fact. Professor Alexander Tsesis points out another maxim of constitutional law, the communitarian basis of individual rights, a thread of meaning that runs through the Declaration of Independence, the Bill of Rights, and the Reconstruction Amendments. As the Supreme Court itself becomes more diverse and modern, it may free itself from the old orthodoxies and consult this new and more realistic understanding of history and national identity.

These thoughts are prompted largely by the fourth annual Constitutional Law Colloquium held at Loyola University School of Law this past weekend, November 1- 2.
Under the friendly guidance of Professor John Nowak and colleagues, the colloquium is designed to give a new generation of young scholars a chance to present their ideas and to talk with each other, and the result is a gathering of young people of diverse shapes, sizes and colorings, from diverse backgrounds. The energy and intelligence of the presentations was enormously encouraging. I can't summarize in any useful way the diversity of papers given in simultaneous sessions, but the link embedded above will take you to the program and to the list of presenters, some of whom are putting up their papers on ssrn, and others who perhaps will share drafts. The common theme among the papers I was able to hear was an insistence on factual history, a disdain for conventional mythology, and a firm grounding in the realities of the present day. Holmes I hope would have been glad to see his racial ideas discarded, and his belief in the importance of history vindicated.

Wednesday, November 6, 2013

One of the many odd things about Bond v. United States, argued yesterday before the Supreme Court is the radical character of the case. Over at the Originalism Blog Michael Ramsey has posted intelligent remarks and links to other originalist commentary; Senator Ted Cruz addressing the Heritage Foundation gave his learned opinion the other day; but by and large Bond's suit has been treated as a curiosity with no special importance--and it seemed plain at oral argument that at least six of the judges were sympathetic to Bond's argument.

The briefs and argument resembled a scholarly debate between rival theories of the Constitution. But Article III of the Constitution says that the justices may decide only particular "cases" or "controversies," and we have always understood that they were not supposed to issue legislative-style rules or doctrines. What is going on? Considered as a case or controversy, Ms Bond's appeal is settled by precedent, the famous case of Missouri v. Holland, but her advocates want to change all that, and a majority of the justices seem willing to listen to the new theories presented to them.

Considered on its facts, the case is not difficult. Bond tried to poison her neighbor and her neighbor's child, and came close to success. She was tried and convicted of a felony and sentenced to six years in prison. She does not deny the facts that were determined against her, nor does she claim that her conviction or her sentence were unfair. She is not asserting any right of her own, in the ordinary sense. The crime was committed in a suburb of Philadelphia, and Bond claims that the statute under which she was convicted infringes upon the sovereignty of the Commonwealth of Pennsylvania, and therefore was invalid as applied to her, and her conviction should be overturned as unconstitutional. In other words, she is asserting the rights of the state to be free from federal intrusion.

The case was argued by Paul Clement and Solicitor General Don Virrelli, who were antagonists in the challenge to the Affordable Care Act, and their presence alone signals the importance of the case--it is another round in the battle for states' rights, lately relabeled "sovereignty."

The claims put forward on behalf of Bond have some plausibility because the federal statute under which she was charged is the Chemical Weapons Convention Implementation Act, and it seems a reach to apply the language of an international treaty to the attack made by Bond on her neighbor and rival. Maybe the prosecution was a stretch, but local law enforcement declined to act, and the U.S. Attorney who brought the suit was applying a federal statute according to its terms. The prosecution was at most ill advised, but under existing case law it was not unconstitutional.

The attack on federal authority began with insistence that the suit was absurd, a patent overreach of federal authority, and much of the argument and commentary was devoted to finding a "middle ground." Only three of the justices seemed to support the Solicitor General's argument that the prosecution was proper and the result was unremarkable. As in the earlier contest over Obamacare, however, Virrelli was unable to respond persuasively to the claim that the federal government had unlimited power to revise the Constitution to suit the demands of a treaty. What then will happen to states' rights, the Chief Justice demands, if the President and the Senate adopt a treaty that allows them to replace all local law enforcement with federal prosecutions? Virrelli was able to respond only with the assertion, undoubtedly correct, that such a treaty would be politically impossible. But that hardly answers the claim that in theory, the federal government could fulfill the worst fantasies of the Right.

The other curious aspect of the case is that no one refers to the opinion in Missouri v. Holland, although that is what the suit aims at. In that case, the same arguments were advanced and rejected by the Supreme Court. The State of Missouri was offended in its dignity by the intrusion of Mr. Holland, a federal game warden, enforcing the federal Migratory Bird Treaty Act, in disregard of the state's traditional control over hunting, enshrined in the language of the Tenth Amendment. Justice Holmes, speaking for the Court, pointed out that the enforcement of treaty obligations was itself a part of the constitutional scheme, and necessarily infringed upon what would otherwise be state prerogatives:

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. . . . It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with, but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found. . . What was said . . . with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. . . . Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. . .We see nothing in the Constitution that compels the Government to sit by . . . . It is not sufficient to rely upon the States. The reliance is vain . . . .

The Constitution, in short, already provides a principle that allows us to weigh the claims of the state against the federal government's necessary power. The federal government may act in matters in which the states individually are incompetent to act. The treaty against chemical weapons surely provides such a power, and it can reasonably be implemented through a statute that punished the use of toxic chemicals as a weapon. Reliance on the states is vain.

Monday, November 4, 2013

Carol Anne Bond admittedly tried to injur or kill a neighbor, with whom her husband had fathered a child. The attempt failed, and local law enforcement seemed to take no interest in what may have seemed a squabble between rivals. The U. S. Attorney for the Eastern District of Pennsylvania took the case,however, and charged Bond with a violation of a federal statute that implements the Chemical Weapons Convention Implementation Act, she admittedly having possessed a toxic chemical to be used as a weapon. Bond was convicted and sentenced to six years in prison. Her appeal has become a cause celebre for the radical Right and has reached the Supreme Court. Her lawyers have asked the Court to overturn a century-old precedent established in the famous case of Missouri v. Holland,familiar to every law student, in which Justice Holmes, writing for a seven-member majority, rejected Missouri's claim that the Migratory Bird Treaty Act was unconstitutional, because the TEntrh Amendment to the Constitution protects a state's right to regulate hunting. Bond's lawyers want the Court to say that Chemical Weapons Treaty can't be applied to her, reviving the claims rejected in 1920. I don't want to get into the weeds, Lyle Denniston at SCOTUSblog has a good summary and preview of the arguments. Suffice it to say that Holmes's opinion in 1920 treated an originalist argument with something like contempt:

The treaty in question [the Migratory Bird Treaty Act]does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.

A state, Holmes said, although it was accustomed to define hunting seasons, had no claim over migratory birds passing through it, and had no right protected by the Tenth Amendment. This has unsettled the new Right, who are energetically defending states' rights. Te Federalist Society and the Heritage Foundation may have also been aroused by Holmes' express rejection of the cheese-paring textualism that has become a mechanism for overturning precedents. Holmes rejected the textualist argument presented to the Court, and answered it with a copious citation of precedents establishing the principle that the federal government had authority to accomplish what the states alone could not, when exercising the treaty-making authority conferred by the Constitution. Protecting natural resources was a matter of national, Holmes said:

Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld.

In another case on the Court's docket this term, a similar challenge is being made against the federal government's authority to regulate interstate air pollution, and ultimately to address climate change. Holmes seems to stand in the way in that case as well.